Memo

BILL NUMBER:S7745

TITLE OF BILL: An act to amend the insurance law, the public health law and the financial services law, in relation to establishing protections to prevent surprise medical bills including network adequacy requirements, claim submission requirements, adequacy of and access to out-of-network care and prohibition of excessive emergency charges; and providing for the repeal of certain provisions upon expiration thereof

SUMMARY OF PROVISIONS: Section one amends Insurance Law §3217-a(a) to make several conforming changes and require insurers to provide several additional disclosures. For all policies offering out-of-network coverage pursuant to §3420(b)&(c) of this article, the insurer must provide a clear description of the methodology used by the insurer to determine reimbursement for out-of-network health care services, including a description of the amount set forth as a percentage of the usual and customary cost for out-of-network health care services and examples of anticipated out-of-pocket costs.

Section two amends Insurance Law §3217-a(b) to require the insurer to disclose, upon request, whether a health care provider schedule d to perform services is in-network, the dollar amount the insurer will pay for specific out-of-network services and information permitting an insured or prospective insured to determine anticipated out-of-pocket costs for out-of-network services in a geographical area, based upon the difference the insurer will reimburse and the usual and customary cost.

Section three amends Insurance Law §3217-a(f) to define the usual and customary cost as the eightieth percentile of all charges for a particular health care service performed in the same or similar specialty and provided in the same geographical area as reported by FAIR Health, Inc.

Section four amends Insurance Law §3217-d(d) to provide that comprehensive policies under this article must provide access to out-of-network services if there is no in-network provider.

Section five amends Insurance Law §3224-a to require an insurer, a corporation or organization under Article 43 or Article 47 of this chapter and HMOs under Article 44 of the Public Health Law to accept claims submitted through the internet, e-mail or fax.

Section six adds a new §3240 to the Insurance Law. Section 3240(a) requires that an insurer, a corporation organized pursuant to Article 43 and a municipal cooperative health benefit plan under Article 47 of this chapter to maintain an adequate network. Sections 3240(b) & (c) requires an insurer, a corporation organized pursuant to Article 43, a municipal cooperative health benefit plan certified under Article 47 of this chapter and an HMO under article 44 of the Public Health Law to provide: 1) significant coverage of the usual and customary cost of out-of-network services; and 2) to offer at least one policy or contract option in each geographical region covered that provides coverage for at least 80% of the usual and customary cost of out-of-network health care services, after imposition of a deductible.

Section eight amends Insurance Law §4324 to make the changes outlined in section one of this bill to Article 43 corporations.

Section nine amends Insurance Law §4324 to make the changes outlined in section two of this bill applicable to Article 4.3 corporations.

Section ten amends Insurance Law §4324 to define the usual and customary cost for purposes of this section.

Sections 11, 12, 13, 14 and 15 amend Article 49 of the Insurance Law to establish a procedure for the review and appeal of denials of out-of-network referrals.

Section 16 adds a new Public Health Law §23 to require physicians to submit a claim form with a patient bill.

Section 17 adds new §24 to the Public Health Law to require health care professionals and hospitals to provide certain disclosures.

Section 18 amends Public Health Law §4408 to provide the same disclosures detailed in section one and eight of this bill applicable to HMOs.

Section 19 amends Public Health Law §4408 make the same changes provided in section two and nine of this bill applicable to HMOs.

Section 20 amends Public Health Law §4408 to define the usual and customary cost of out-of-network services.

Section 21, 22, 23, 24 and 25 amends Article 49 of the Public Health Law to establish a procedure for the review and appeal of denials of out-of-network referrals.

Section 26 amends the Financial Services Law to establish a new Article 7 to prohibit excessive charges for emergency services. This article establishes a binding dispute resolution process and criteria for determining what constitutes excessive charges.

Section 27 provides that this act shall take effect on January 1, 2013, provided, however, that: 1) policies renewed on and after such date this act shall take effect on the renewal date; 2) sections 12, 16, 17, 22 and 26 shall apply to health care services provided on and after such date and section 26 shall be deemed repealed on January 1, 2015; and 3) sections 11, 13, 14, 15, 21, 23, 24 and 25 of this act shall apply to denials issued on and after such date.

JUSTIFICATION: Some consumers choose health insurance policies that permit them to receive care from a nonparticipating provider because it permits them to see the health care provider of their choice. However, this system has been fraught with problems. In February 2008, then Attorney General Andrew M. Cuomo commenced suit against Ingenix, Inc., a subsidiary of United Health Group, asserting that the rates found in the database were lower than the actual cost of medical expenses. According to the suit, this allowed health insurance companies to deny a portion of provider claims, thereby pushing costs down to members. In January 2009, United Health Group reached a settlement with the Attorney General whereby they agreed to pay $50 million to fund a not-for-profit entity to develop a new, independent product to replace its database. As a result, FAIR Health, Inc. was established with the mission of ensuring transparency in health care costs.

The FAIR Health database is now operational for reporting medical charge data. However, since the fall of Ingenix, a number of insurers have begun using Medicare rates as the benchmark for determining reimbursement of out-of-network costs. This often results in what some deem to be inadequate reimbursement. This legislation is intended to ensure that the FAIR Health database is appropriately utilized.

The New York Times recently reported an instance in which a patient was billed $2,800 for half an hour of anesthesia provided by an out-of-network anesthesiologist during a routine colonoscopy provided by a participating provider. The Department of Financial Services recently released a report detailing the challenges consumers face with unexpected medical billings. This legislation would address these concerns by requiring certain disclosures by health care providers, hospitals and insurers to prevent surprise medical bills. This bill also protects consumers by ensuring they have adequate access to in-network services, with the capability to go out-of-network in the event there is no in-network provider. Furthermore, this legislation protects consumers from excessive charges for emergency services.

LEGISLATIVE HISTORY: New bill.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: January 1, 2013 with certain provisions.

Text

STATE OF NEW YORK
________________________________________________________________________
7745
IN SENATE
June 17, 2012
___________

Introduced by Sen. HANNON -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to amend the insurance law, the public health law and the finan-
cial services law, in relation to establishing protections to prevent
surprise medical bills including network adequacy requirements, claim
submission requirements, adequacy of and access to out-of-network care
and prohibition of excessive emergency charges; and providing for the
repeal of certain provisions upon expiration thereof
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs 11, 12, 13, 14, 16 and 17 of subsection (a) of
section 3217-a of the insurance law, as added by chapter 705 of the laws
of 1996, are amended and three new paragraphs 16-a, 18 and 19 are added
to read as follows:
(11) where applicable, notice that an insured enrolled in a managed
care product OR A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF
PROVIDERS offered by the insurer may obtain a referral to a health care
provider outside of the insurer's network or panel when the insurer does
not have a health care provider with appropriate training and experience
in the network or panel to meet the particular health care needs of the
insured and the procedure by which the insured can obtain such referral;
(12) where applicable, notice that an insured enrolled in a managed
care product OR A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF
PROVIDERS offered by the insurer with a condition which requires ongoing
care from a specialist may request a standing referral to such a
specialist and the procedure for requesting and obtaining such a stand-
ing referral;
(13) where applicable, notice that an insured enrolled in a managed
care product OR A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF
PROVIDERS offered by the insurer with (i) a life-threatening condition
or disease, or (ii) a degenerative and disabling condition or disease,
either of which requires specialized medical care over a prolonged peri-
od of time may request a specialist responsible for providing or coordi-

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16282-02-2

S. 7745 2

nating the insured's medical care and the procedure for requesting and
obtaining such a specialist;
(14) where applicable, notice that an insured enrolled in a managed
care product OR A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF
PROVIDERS offered by the insurer with (i) a life-threatening condition
or disease, or (ii) a degenerative and disabling condition or disease,
either of which requires specialized medical care over a prolonged peri-
od of time, may request access to a specialty care center and the proce-
dure by which such access may be obtained;
(16) notice of all appropriate mailing addresses and telephone numbers
to be utilized by insureds seeking information or authorization; [and]
(16-A) WHERE APPLICABLE, NOTICE THAT AN INSURED SHALL HAVE DIRECT
ACCESS TO PRIMARY AND PREVENTIVE OBSTETRIC AND GYNECOLOGIC SERVICES
INCLUDING ANNUAL EXAMINATIONS, CARE RESULTING FROM SUCH ANNUAL EXAMINA-
TIONS, AND TREATMENT OF ACUTE GYNECOLOGIC CONDITIONS, FROM A QUALIFIED
PROVIDER OF SUCH SERVICES OF HER CHOICE FROM WITHIN THE PLAN OR FOR ANY
CARE RELATED TO A PREGNANCY;
(17) where applicable, a listing by specialty, which may be in a sepa-
rate document that is updated annually, of the name, address, and tele-
phone number of all participating providers, including facilities, and
in addition, in the case of physicians, board certification[.],
LANGUAGES SPOKEN AND AFFILIATION WITH PARTICIPATING HOSPITALS. THE LIST-
ING SHALL ALSO BE POSTED ON THE INSURER'S WEBSITE AND THE INSURER SHALL
UPDATE THE WEBSITE WITHIN FIFTEEN DAYS OF THE ADDITION OR TERMINATION OF
A PROVIDER FROM THE INSURER'S NETWORK OR A CHANGE IN A PHYSICIAN'S
HOSPITAL AFFILIATION;
(18) A DESCRIPTION OF THE METHOD BY WHICH AN INSURED MAY SUBMIT A
CLAIM FOR HEALTH CARE SERVICES, INCLUDING THROUGH THE INTERNET, ELEC-
TRONIC MAIL OR BY FACSIMILE; AND
(19) WHERE APPLICABLE, WHEN A POLICY OFFERS OUT-OF-NETWORK COVERAGE
PURSUANT TO SUBSECTIONS (B) AND (C) OF SECTION THIRTY-TWO HUNDRED FORTY
OF THIS ARTICLE:
(A) A CLEAR DESCRIPTION OF THE METHODOLOGY USED BY THE INSURER TO
DETERMINE REIMBURSEMENT FOR OUT-OF-NETWORK HEALTH CARE SERVICES;
(B) A DESCRIPTION OF THE AMOUNT THAT THE INSURER WILL REIMBURSE UNDER
THE METHODOLOGY FOR OUT-OF-NETWORK HEALTH CARE SERVICES SET FORTH AS A
PERCENTAGE OF THE USUAL AND CUSTOMARY COST FOR OUT-OF-NETWORK HEALTH
CARE SERVICES; AND
(C) EXAMPLES OF ANTICIPATED OUT-OF-POCKET COSTS FOR FREQUENTLY BILLED
OUT-OF-NETWORK HEALTH CARE SERVICES.
S 2. Paragraphs 11 and 12 of subsection (b) of section 3217-a of the
insurance law, as added by chapter 705 of the laws of 1996, are amended
and three new paragraphs 13, 14 and 15 are added to read as follows:
(11) where applicable, provide the written application procedures and
minimum qualification requirements for health care providers to be
considered by the insurer for participation in the insurer's network for
a managed care product; [and]
(12) disclose such other information as required by the superinten-
dent, provided that such requirements are promulgated pursuant to the
state administrative procedure act[.];
(13) DISCLOSE WHETHER A HEALTH CARE PROVIDER SCHEDULED TO PROVIDE A
HEALTH CARE SERVICE IS AN IN-NETWORK PROVIDER;
(14) WHERE APPLICABLE, WITH RESPECT TO OUT-OF-NETWORK COVERAGE,
DISCLOSE THE DOLLAR AMOUNT THAT THE INSURER WILL PAY FOR A SPECIFIC
OUT-OF-NETWORK HEALTH CARE SERVICE; AND

S. 7745 3

(15) PROVIDE INFORMATION IN WRITING AND THROUGH AN INTERNET WEBSITE
THAT REASONABLY PERMITS AN INSURED OR PROSPECTIVE INSURED TO DETERMINE
THE ANTICIPATED OUT-OF-POCKET COST FOR OUT-OF-NETWORK HEALTH CARE
SERVICES IN A GEOGRAPHICAL AREA OR ZIP CODE BASED UPON THE DIFFERENCE
BETWEEN WHAT THE INSURER WILL REIMBURSE FOR OUT-OF-NETWORK HEALTH CARE
SERVICES AND THE USUAL AND CUSTOMARY COST FOR OUT-OF-NETWORK HEALTH CARE
SERVICES.
S 3. Section 3217-a of the insurance law is amended by adding a new
subsection (f) to read as follows:
(F) FOR PURPOSES OF THIS SECTION, "USUAL AND CUSTOMARY COST" SHALL
MEAN THE EIGHTIETH PERCENTILE OF ALL CHARGES FOR THE PARTICULAR HEALTH
CARE SERVICE PERFORMED BY A PROVIDER IN THE SAME OR SIMILAR SPECIALTY
AND PROVIDED IN THE SAME GEOGRAPHICAL AREA AS REPORTED IN A BENCHMARKING
DATABASE MAINTAINED BY A NONPROFIT ORGANIZATION SPECIFIED BY THE SUPER-
INTENDENT. THE NONPROFIT ORGANIZATION SHALL NOT BE AFFILIATED WITH AN
INSURER, A CORPORATION SUBJECT TO ARTICLE FORTY-THREE OF THIS CHAPTER, A
MUNICIPAL COOPERATIVE HEALTH BENEFIT PLAN CERTIFIED PURSUANT TO ARTICLE
FORTY-SEVEN OF THIS CHAPTER, OR A HEALTH MAINTENANCE ORGANIZATION CERTI-
FIED PURSUANT TO ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW.
S 4. Section 3217-d of the insurance law is amended by adding a new
subsection (d) to read as follows:
(D) AN INSURER THAT ISSUES A COMPREHENSIVE POLICY THAT UTILIZES A
NETWORK OF PROVIDERS AND IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT
AS DEFINED IN SUBSECTION (C) OF SECTION FOUR THOUSAND EIGHT HUNDRED ONE
OF THIS CHAPTER, SHALL PROVIDE ACCESS TO OUT-OF-NETWORK SERVICES
CONSISTENT WITH THE REQUIREMENTS OF SUBSECTION (A) OF SECTION FOUR THOU-
SAND EIGHT HUNDRED FOUR OF THIS CHAPTER, SUBSECTIONS (G-6) AND (G-7) OF
SECTION FOUR THOUSAND NINE HUNDRED OF THIS CHAPTER, SUBSECTIONS (A-1)
AND (A-2) OF SECTION FOUR THOUSAND NINE HUNDRED FOUR OF THIS CHAPTER,
PARAGRAPHS THREE AND FOUR OF SUBSECTION (B) OF SECTION FOUR THOUSAND
NINE HUNDRED TEN OF THIS CHAPTER, AND SUBPARAGRAPHS (C) AND (D) OF PARA-
GRAPH FOUR OF SUBSECTION (B) OF SECTION FOUR THOUSAND NINE HUNDRED FOUR-
TEEN OF THIS CHAPTER.
S 5. Section 3224-a of the insurance law is amended by adding a new
subsection (i) to read as follows:
(I) AN INSURER OR AN ORGANIZATION OR CORPORATION LICENSED OR CERTIFIED
PURSUANT TO ARTICLE FORTY-THREE OR FORTY-SEVEN OF THIS CHAPTER OR ARTI-
CLE FORTY-FOUR OF THE PUBLIC HEALTH LAW SHALL ACCEPT CLAIMS SUBMITTED BY
A POLICYHOLDER OR COVERED PERSON THROUGH THE INTERNET, ELECTRONIC MAIL
OR BY FACSIMILE.
S 6. The insurance law is amended by adding a new section 3240 to read
as follows:
S 3240. NETWORK COVERAGE. (A) AN INSURER, A CORPORATION ORGANIZED
PURSUANT TO ARTICLE FORTY-THREE OF THIS CHAPTER, OR A MUNICIPAL COOPER-
ATIVE HEALTH BENEFIT PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF
THIS CHAPTER THAT ISSUES A HEALTH INSURANCE POLICY OR CONTRACT WITH A
NETWORK OF HEALTH CARE PROVIDERS SHALL ENSURE THAT THE NETWORK IS
ADEQUATE TO MEET THE HEALTH NEEDS OF INSUREDS AND PROVIDE AN APPROPRIATE
CHOICE OF PROVIDERS SUFFICIENT TO RENDER THE SERVICES COVERED UNDER THE
POLICY OR CONTRACT. THE SUPERINTENDENT SHALL REVIEW THE NETWORK OF
HEALTH CARE PROVIDERS FOR ADEQUACY AT THE TIME OF THE SUPERINTENDENT'S
INITIAL APPROVAL OF A HEALTH INSURANCE POLICY OR CONTRACT; AT LEAST
EVERY THREE YEARS THEREAFTER; AND UPON APPLICATION FOR EXPANSION OF ANY
SERVICE AREA ASSOCIATED WITH THE POLICY OR CONTRACT. TO THE EXTENT THAT
THE NETWORK HAS BEEN DETERMINED BY THE COMMISSIONER OF HEALTH TO MEET
THE STANDARDS SET FORTH IN SUBDIVISION FIVE OF SECTION FOUR THOUSAND

S. 7745 4

FOUR HUNDRED THREE OF THE PUBLIC HEALTH LAW, SUCH NETWORK SHALL BE
DEEMED ADEQUATE BY THE SUPERINTENDENT.
(B) AN INSURER, A CORPORATION ORGANIZED PURSUANT TO ARTICLE
FORTY-THREE OF THIS CHAPTER, A MUNICIPAL COOPERATIVE HEALTH BENEFIT PLAN
CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THIS CHAPTER, OR A HEALTH
MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF THE
PUBLIC HEALTH LAW, THAT PROVIDES COVERAGE FOR OUT-OF-NETWORK SERVICES
SHALL PROVIDE SIGNIFICANT COVERAGE OF THE USUAL AND CUSTOMARY COSTS OF
OUT-OF-NETWORK HEALTH CARE SERVICES.
(C) AN INSURER, A CORPORATION ORGANIZED PURSUANT TO ARTICLE
FORTY-THREE OF THIS CHAPTER, A MUNICIPAL COOPERATIVE HEALTH BENEFIT PLAN
CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THIS CHAPTER, OR A HEALTH
MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR OF THE
PUBLIC HEALTH LAW, THAT PROVIDES COVERAGE FOR OUT-OF-NETWORK SERVICES
SHALL OFFER AT LEAST ONE POLICY OR CONTRACT OPTION IN EACH GEOGRAPHICAL
REGION COVERED THAT PROVIDES COVERAGE FOR AT LEAST EIGHTY PERCENT OF THE
USUAL AND CUSTOMARY COST OF OUT-OF-NETWORK HEALTH CARE SERVICES AFTER
IMPOSITION OF A DEDUCTIBLE.
(D) FOR THE PURPOSES OF THIS SECTION "USUAL AND CUSTOMARY COST" SHALL
MEAN THE EIGHTIETH PERCENTILE OF ALL CHARGES FOR THE PARTICULAR HEALTH
CARE SERVICE PERFORMED BY A PROVIDER IN THE SAME OR SIMILAR SPECIALTY
AND PROVIDED IN THE SAME GEOGRAPHICAL AREA AS REPORTED IN A BENCHMARKING
DATABASE MAINTAINED BY A NONPROFIT ORGANIZATION SPECIFIED BY THE SUPER-
INTENDENT. THE NONPROFIT ORGANIZATION SHALL NOT BE AFFILIATED WITH AN
INSURER, A CORPORATION SUBJECT TO ARTICLE FORTY-THREE OF THIS ARTICLE, A
MUNICIPAL COOPERATIVE HEALTH BENEFIT PLAN CERTIFIED PURSUANT TO ARTICLE
FORTY-SEVEN OF THIS CHAPTER, OR A HEALTH MAINTENANCE ORGANIZATION CERTI-
FIED PURSUANT TO ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW.
S 7. Section 4306-c of the insurance law is amended by adding a new
subsection (d) to read as follows:
(D) A CORPORATION, INCLUDING A MUNICIPAL COOPERATIVE HEALTH BENEFIT
PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THIS CHAPTER, THAT
ISSUES A COMPREHENSIVE POLICY THAT UTILIZES A NETWORK OF PROVIDERS AND
IS NOT A MANAGED CARE HEALTH INSURANCE CONTRACT AS DEFINED IN SUBSECTION
(C) OF SECTION FOUR THOUSAND EIGHT HUNDRED ONE OF THIS CHAPTER, SHALL
PROVIDE ACCESS TO OUT-OF-NETWORK SERVICES CONSISTENT WITH THE REQUIRE-
MENTS OF SUBSECTION (A) OF SECTION FOUR THOUSAND EIGHT HUNDRED FOUR OF
THIS CHAPTER, SUBSECTIONS (G-6) AND (G-7) OF SECTION FOUR THOUSAND NINE
HUNDRED OF THIS CHAPTER, SUBSECTIONS (A-1) AND (A-2) OF SECTION FOUR
THOUSAND NINE HUNDRED FOUR OF THIS CHAPTER, PARAGRAPHS THREE AND FOUR OF
SUBSECTION (B) OF SECTION FOUR THOUSAND NINE HUNDRED TEN OF THIS CHAP-
TER, AND SUBPARAGRAPHS (C) AND (D) OF PARAGRAPH FOUR OF SUBSECTION (B)
OF SECTION FOUR THOUSAND NINE HUNDRED FOURTEEN OF THIS CHAPTER.
S 8. Paragraphs 11, 12, 13, 14, 16-a, 17, and 18 of subsection (a) of
section 4324 of the insurance law, as added by chapter 705 of the laws
of 1996, paragraph 16-a as added by chapter 554 of the laws of 2002, are
amended and two new paragraphs 19 and 20 are added to read as follows:
(11) where applicable, notice that a subscriber enrolled in a managed
care product OR A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF
PROVIDERS offered by the corporation may obtain a referral to a health
care provider outside of the corporation's network or panel when the
corporation does not have a health care provider with appropriate train-
ing and experience in the network or panel to meet the particular health
care needs of the subscriber and the procedure by which the subscriber
can obtain such referral;

S. 7745 5

(12) where applicable, notice that a subscriber enrolled in a managed
care product OR A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF
PROVIDERS offered by the corporation with a condition which requires
ongoing care from a specialist may request a standing referral to such a
specialist and the procedure for requesting and obtaining such a stand-
ing referral;
(13) where applicable, notice that a subscriber enrolled in a managed
care product OR A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF
PROVIDERS offered by the corporation with (i) a life-threatening condi-
tion or disease, or (ii) a degenerative and disabling condition or
disease, either of which requires specialized medical care over a
prolonged period of time may request a specialist responsible for
providing or coordinating the subscriber's medical care and the proce-
dure for requesting and obtaining such a specialist;
(14) where applicable, notice that a subscriber enrolled in a managed
care product OR A COMPREHENSIVE CONTRACT THAT UTILIZES A NETWORK OF
PROVIDERS offered by the corporation with (i) a life-threatening condi-
tion or disease, or (ii) a degenerative and disabling condition or
disease, either of which requires specialized medical care over a
prolonged period of time may request access to a specialty care center
and the procedure by which such access may be obtained;
(16-a) where applicable, notice that an enrollee shall have direct
access to primary and preventive obstetric and gynecologic services
INCLUDING ANNUAL EXAMINATIONS, CARE RESULTING FROM SUCH ANNUAL EXAMINA-
TIONS, AND TREATMENT OF ACUTE GYNECOLOGIC CONDITIONS, from a qualified
provider of such services of her choice from within the plan [for no
fewer than two examinations annually for such services] or [to] FOR any
care related to A pregnancy [and that additionally, the enrollee shall
have direct access to primary and preventive obstetric and gynecologic
services required as a result of such annual examinations or as a result
of an acute gynecologic condition];
(17) where applicable, a listing by specialty, which may be in a sepa-
rate document that is updated annually, of the name, address, and tele-
phone number of all participating providers, including facilities, and
in addition, in the case of physicians, board certification[; and],
LANGUAGES SPOKEN AND AFFILIATION WITH PARTICIPATING HOSPITALS. THE
LISTING SHALL ALSO BE POSTED ON THE CORPORATION'S WEBSITE AND THE CORPO-
RATION SHALL UPDATE THE WEBSITE WITHIN FIFTEEN DAYS OF THE ADDITION OR
TERMINATION OF A PROVIDER FROM THE CORPORATION'S NETWORK OR A CHANGE IN
A PHYSICIAN'S HOSPITAL AFFILIATION;
(18) a description of the mechanisms by which subscribers may partic-
ipate in the development of the policies of the corporation[.];
(19) A DESCRIPTION OF THE METHOD BY WHICH A SUBSCRIBER MAY SUBMIT A
CLAIM FOR HEALTH CARE SERVICES, INCLUDING THROUGH THE INTERNET, ELEC-
TRONIC MAIL OR BY FACSIMILE; AND
(20) WHERE APPLICABLE, WHEN A CONTRACT OFFERS OUT-OF-NETWORK COVERAGE
PURSUANT TO SUBSECTIONS (B) AND (C) OF SECTION THIRTY-TWO HUNDRED FORTY
OF THIS CHAPTER:
(A) A CLEAR DESCRIPTION OF THE METHODOLOGY USED BY THE CORPORATION TO
DETERMINE REIMBURSEMENT FOR OUT-OF-NETWORK HEALTH CARE SERVICES;
(B) A DESCRIPTION OF THE AMOUNT THAT THE CORPORATION WILL REIMBURSE
UNDER THE METHODOLOGY FOR OUT-OF-NETWORK HEALTH CARE SERVICES SET FORTH
AS A PERCENTAGE OF THE USUAL AND CUSTOMARY COST FOR OUT-OF-NETWORK
HEALTH CARE SERVICES; AND
(C) EXAMPLES OF ANTICIPATED OUT-OF-POCKET COSTS FOR FREQUENTLY BILLED
OUT-OF-NETWORK HEALTH CARE SERVICES.

S. 7745 6

S 9. Paragraphs 11 and 12 of subsection (b) of section 4324 of the
insurance law, as added by chapter 705 of the laws of 1996, are amended
and three new paragraphs 13, 14 and 15 are added to read as follows:
(11) where applicable, provide the written application procedures and
minimum qualification requirements for health care providers to be
considered by the corporation for participation in the corporation's
network for a managed care product; [and]
(12) disclose such other information as required by the superinten-
dent, provided that such requirements are promulgated pursuant to the
state administrative procedure act[.];
(13) DISCLOSE WHETHER A HEALTH CARE PROVIDER SCHEDULED TO PROVIDE A
HEALTH CARE SERVICE IS AN IN-NETWORK PROVIDER;
(14) WHERE APPLICABLE, WITH RESPECT TO OUT-OF-NETWORK COVERAGE,
DISCLOSE THE DOLLAR AMOUNT THAT THE CORPORATION WILL PAY FOR A SPECIFIC
OUT-OF-NETWORK HEALTH CARE SERVICE; AND
(15) PROVIDE INFORMATION IN WRITING AND THROUGH AN INTERNET WEBSITE
THAT REASONABLY PERMITS A SUBSCRIBER OR PROSPECTIVE SUBSCRIBER TO DETER-
MINE THE ANTICIPATED OUT-OF-POCKET COST FOR OUT-OF-NETWORK HEALTH CARE
SERVICES IN A GEOGRAPHICAL AREA OR ZIP CODE BASED UPON THE DIFFERENCE
BETWEEN WHAT THE CORPORATION WILL REIMBURSE FOR OUT-OF-NETWORK HEALTH
CARE SERVICES AND THE USUAL AND CUSTOMARY COST FOR OUT-OF-NETWORK HEALTH
CARE SERVICES.
S 10. Section 4324 of the insurance law is amended by adding a new
subsection (f) to read as follows:
(F) FOR PURPOSES OF THIS SECTION, "USUAL AND CUSTOMARY COST" SHALL
MEAN THE EIGHTIETH PERCENTILE OF ALL CHARGES FOR THE PARTICULAR HEALTH
CARE SERVICE PERFORMED BY A PROVIDER IN THE SAME OR SIMILAR SPECIALTY
AND PROVIDED IN THE SAME GEOGRAPHICAL AREA AS REPORTED IN A BENCHMARKING
DATABASE MAINTAINED BY A NONPROFIT ORGANIZATION SPECIFIED BY THE SUPER-
INTENDENT. THE NONPROFIT ORGANIZATION SHALL NOT BE AFFILIATED WITH AN
INSURER, A CORPORATION SUBJECT TO THIS ARTICLE, A MUNICIPAL COOPERATIVE
HEALTH BENEFIT PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THIS
CHAPTER, OR A HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO
ARTICLE FORTY-FOUR OF THE PUBLIC HEALTH LAW.
S 11. Subsection (g-7) of section 4900 of the insurance law is redes-
ignated subsection (g-8) and a new subsection (g-7) is added to read as
follows:
(G-7) "OUT-OF-NETWORK REFERRAL DENIAL" MEANS A DENIAL UNDER A MANAGED
CARE PRODUCT AS DEFINED IN SUBSECTION (C) OF SECTION FOUR THOUSAND EIGHT
HUNDRED ONE OF THIS CHAPTER OF A REQUEST FOR AN AUTHORIZATION OR REFER-
RAL TO AN OUT-OF-NETWORK PROVIDER ON THE BASIS THAT THE HEALTH CARE PLAN
HAS A HEALTH CARE PROVIDER IN THE IN-NETWORK BENEFITS PORTION OF ITS
NETWORK WITH APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR
HEALTH CARE NEEDS OF AN INSURED, AND WHO IS ABLE TO PROVIDE THE
REQUESTED HEALTH SERVICE. THE NOTICE OF A DENIAL OF AN OUT-OF-NETWORK
REFERRAL PROVIDED TO AN INSURED SHALL INCLUDE INFORMATION EXPLAINING
WHAT INFORMATION THE INSURED MUST SUBMIT IN ORDER TO APPEAL THE DENIAL
OF AN OUT-OF-NETWORK REFERRAL PURSUANT TO SUBSECTION (A-2) OF SECTION
FOUR THOUSAND NINE HUNDRED FOUR OF THIS ARTICLE. A DENIAL OF AN OUT-OF-
NETWORK REFERRAL UNDER THIS SUBSECTION DOES NOT CONSTITUTE AN ADVERSE
DETERMINATION AS DEFINED IN THIS ARTICLE. A DENIAL OF AN OUT-OF-NETWORK
REFERRAL SHALL NOT BE CONSTRUED TO INCLUDE AN OUT-OF-NETWORK DENIAL AS
DEFINED IN SUBSECTION (G-6) OF THIS SECTION.
S 12. Subsection (b) of section 4903 of the insurance law, as added by
chapter 705 of the laws of 1996, is amended to read as follows:

S. 7745 7

(b) A utilization review agent shall make a utilization review deter-
mination involving health care services which require pre-authorization
and provide notice of a determination to the insured or insured's desig-
nee and the insured's health care provider by telephone and in writing
within three business days of receipt of the necessary information. THE
NOTIFICATION SHALL IDENTIFY WHETHER THE SERVICES ARE CONSIDERED IN-NET-
WORK OR OUT-OF-NETWORK.
S 13. Section 4904 of the insurance law is amended by adding a new
subsection (a-2) to read as follows:
(A-2) AN INSURED OR THE INSURED'S DESIGNEE MAY APPEAL A DENIAL OF AN
OUT-OF-NETWORK REFERRAL BY A HEALTH CARE PLAN BY SUBMITTING A WRITTEN
STATEMENT FROM THE INSURED'S ATTENDING PHYSICIAN, WHO MUST BE A
LICENSED, BOARD CERTIFIED OR BOARD ELIGIBLE PHYSICIAN QUALIFIED TO PRAC-
TICE IN THE SPECIALTY AREA OF PRACTICE APPROPRIATE TO TREAT THE INSURED
FOR THE HEALTH SERVICE SOUGHT THAT: (1) THE IN-NETWORK HEALTH CARE
PROVIDER OR PROVIDERS RECOMMENDED BY THE HEALTH CARE PLAN DO NOT HAVE
THE APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH
CARE NEEDS OF THE INSURED FOR THE HEALTH SERVICE; AND (2) RECOMMENDS AN
OUT-OF-NETWORK PROVIDER WITH THE APPROPRIATE TRAINING AND EXPERIENCE TO
MEET THE PARTICULAR HEALTH CARE NEEDS OF THE INSURED, AND WHO IS ABLE TO
PROVIDE THE REQUESTED HEALTH SERVICE.
S 14. Subsection (b) of section 4910 of the insurance law is amended
by adding a new paragraph 4 to read as follows:
(4)(A) THE INSURED HAS HAD AN OUT-OF-NETWORK REFERRAL DENIED ON THE
GROUNDS THAT THE HEALTH CARE PLAN HAS A HEALTH CARE PROVIDER IN THE
IN-NETWORK BENEFITS PORTION OF ITS NETWORK WITH APPROPRIATE TRAINING AND
EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE NEEDS OF AN INSURED, AND
WHO IS ABLE TO PROVIDE THE REQUESTED HEALTH SERVICE.
(B) THE INSURED'S ATTENDING PHYSICIAN, WHO SHALL BE A LICENSED, BOARD
CERTIFIED OR BOARD ELIGIBLE PHYSICIAN QUALIFIED TO PRACTICE IN THE
SPECIALTY AREA OF PRACTICE APPROPRIATE TO TREAT THE INSURED FOR THE
HEALTH SERVICE SOUGHT, CERTIFIES THAT THE IN-NETWORK HEALTH CARE PROVID-
ER OR PROVIDERS RECOMMENDED BY THE HEALTH CARE PLAN DO NOT HAVE THE
APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE
NEEDS OF AN INSURED, AND RECOMMENDS AN OUT-OF-NETWORK PROVIDER WITH THE
APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE
NEEDS OF AN INSURED, AND WHO IS ABLE TO PROVIDE THE REQUESTED HEALTH
SERVICE.
S 15. Paragraph 4 of subsection (b) of section 4914 of the insurance
law is amended by adding a new subparagraph (D) to read as follows:
(D) FOR EXTERNAL APPEALS REQUESTED PURSUANT TO PARAGRAPH FOUR OF
SUBSECTION (B) OF SECTION FOUR THOUSAND NINE HUNDRED TEN OF THIS TITLE
RELATING TO AN OUT-OF-NETWORK REFERRAL, THE EXTERNAL APPEAL AGENT SHALL
REVIEW THE UTILIZATION REVIEW AGENT'S FINAL ADVERSE DETERMINATION AND,
IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE, SHALL MAKE A DETERMI-
NATION AS TO WHETHER THE OUT-OF-NETWORK REFERRAL SHALL BE COVERED BY THE
HEALTH PLAN; PROVIDED THAT SUCH DETERMINATION SHALL:
(I) BE CONDUCTED ONLY BY ONE OR A GREATER ODD NUMBER OF CLINICAL PEER
REVIEWERS;
(II) BE ACCOMPANIED BY A WRITTEN STATEMENT:
(I) THAT THE OUT-OF-NETWORK REFERRAL SHALL BE COVERED BY THE HEALTH
CARE PLAN EITHER WHEN THE REVIEWER OR A MAJORITY OF THE PANEL OF REVIEW-
ERS DETERMINES, UPON REVIEW OF THE TRAINING AND EXPERIENCE OF THE
IN-NETWORK HEALTH CARE PROVIDER OR PROVIDERS PROPOSED BY THE PLAN, THE
TRAINING AND EXPERIENCE OF THE REQUESTED OUT-OF-NETWORK PROVIDER, THE
CLINICAL STANDARDS OF THE PLAN, THE INFORMATION PROVIDED CONCERNING THE

S. 7745 8

INSURED, THE ATTENDING PHYSICIAN'S RECOMMENDATION, THE INSURED'S MEDICAL
RECORD, AND ANY OTHER PERTINENT INFORMATION, THAT THE HEALTH PLAN DOES
NOT HAVE A PROVIDER WITH THE APPROPRIATE TRAINING AND EXPERIENCE TO MEET
THE PARTICULAR HEALTH CARE NEEDS OF AN INSURED WHO IS ABLE TO PROVIDE
THE REQUESTED HEALTH SERVICE, AND THAT THE OUT-OF-NETWORK PROVIDER HAS
THE APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH
CARE NEEDS OF AN INSURED, IS ABLE TO PROVIDE THE REQUESTED HEALTH
SERVICE, AND IS LIKELY TO PRODUCE A MORE CLINICALLY BENEFICIAL OUTCOME;
OR
(II) UPHOLDING THE HEALTH PLAN'S DENIAL OF COVERAGE;
(III) BE SUBJECT TO THE TERMS AND CONDITIONS GENERALLY APPLICABLE TO
BENEFITS UNDER THE EVIDENCE OF COVERAGE UNDER THE HEALTH CARE PLAN;
(IV) BE BINDING ON THE PLAN AND THE INSURED; AND
(V) BE ADMISSIBLE IN ANY COURT PROCEEDING.
S 16. The public health law is amended by adding a new section 23 to
read as follows:
S 23. CLAIM FORMS. A PHYSICIAN SHALL INCLUDE A CLAIM FORM FOR A
THIRD-PARTY PAYOR WITH A PATIENT BILL FOR HEALTH CARE SERVICES, OTHER
THAN A BILL FOR THE PATIENT'S CO-PAYMENT, COINSURANCE OR DEDUCTIBLE.
S 17. The public health law is amended by adding a new section 24 to
read as follows:
S 24. DISCLOSURE. 1. A HEALTH CARE PROFESSIONAL SHALL DISCLOSE TO
PATIENTS OR PROSPECTIVE PATIENTS IN WRITING OR THROUGH AN INTERNET
WEBSITE THE HEALTH CARE PLANS IN WHICH THE HEALTH CARE PROFESSIONAL IS A
PARTICIPATING PROVIDER AND THE HOSPITALS WITH WHICH THE HEALTH CARE
PROFESSIONAL IS AFFILIATED.
2. IF A HEALTH CARE PROFESSIONAL DOES NOT PARTICIPATE IN THE NETWORK
OF A PATIENT'S OR PROSPECTIVE PATIENT'S HEALTH CARE PLAN, THE HEALTH
CARE PROFESSIONAL SHALL, UPON RECEIPT OF A REQUEST FROM A PATIENT OR
PROSPECTIVE PATIENT, DISCLOSE TO THE PATIENT OR PROSPECTIVE PATIENT IN
WRITING THE AMOUNT OR ESTIMATED AMOUNT THE HEALTH CARE PROFESSIONAL WILL
BILL THE PATIENT OR PROSPECTIVE PATIENT FOR HEALTH CARE SERVICES
PROVIDED OR ANTICIPATED TO BE PROVIDED TO THE PATIENT OR PROSPECTIVE
PATIENT.
3. A HEALTH CARE PROFESSIONAL WHO IS A PHYSICIAN SHALL PROVIDE A
PATIENT OR PROSPECTIVE PATIENT WITH THE NAME, PRACTICE NAME, MAILING
ADDRESS, AND TELEPHONE NUMBER OF ANY HEALTH CARE PROVIDER OF ANESTHE-
SIOLOGY, LABORATORY, PATHOLOGY, RADIOLOGY OR ASSISTANT SURGEON SERVICES
PERFORMED IN THE PHYSICIAN'S OFFICE OR COORDINATED OR REFERRED BY THE
PHYSICIAN.
4. A HEALTH CARE PROFESSIONAL WHO IS A PHYSICIAN SHALL, FOR A
PATIENT'S SCHEDULED HOSPITAL ADMISSION OR SCHEDULED OUTPATIENT HOSPITAL
SERVICES, PROVIDE A PATIENT AND THE HOSPITAL WITH THE NAME, PRACTICE
NAME, MAILING ADDRESS AND TELEPHONE NUMBER OF ANY OTHER PHYSICIAN WHOSE
SERVICES WILL BE ARRANGED BY THE PHYSICIAN AND ARE SCHEDULED AT THE TIME
OF THE PRE-ADMISSION TESTING, REGISTRATION OR ADMISSION.
5. A HOSPITAL SHALL ESTABLISH, UPDATE, MAKE PUBLIC AND POST ON THE
HOSPITAL'S WEBSITE, A LIST OF THE HOSPITAL'S STANDARD CHARGES FOR ITEMS
AND SERVICES PROVIDED BY THE HOSPITAL, INCLUDING FOR DIAGNOSIS-RELATED
GROUPS ESTABLISHED UNDER SECTION 1886(D)(4) OF THE FEDERAL SOCIAL SECU-
RITY ACT.
6. A HOSPITAL SHALL POST ON THE HOSPITAL'S WEBSITE: (A) THE HEALTH
CARE PLANS IN WHICH THE HOSPITAL IS A PARTICIPATING PROVIDER; AND (B)
THE NAME, PRACTICE NAME, MAILING ADDRESS, AND TELEPHONE NUMBER OF ANY
HEALTH CARE PROFESSIONAL WHO IS A PHYSICIAN AND WHOSE SERVICES WILL BE

S. 7745 9

PROVIDED AT THE HOSPITAL, BUT WILL NOT BE BILLED AS PART OF THE HOSPITAL
CHARGES.
7. A HOSPITAL SHALL, AT THE EARLIER OF EITHER PRE-ADMISSION TESTING,
OUTPATIENT REGISTRATION, OR A NON-EMERGENCY HOSPITAL ADMISSION: (A)
PROVIDE A PATIENT OR PROSPECTIVE PATIENT WITH THE NAME, PRACTICE NAME,
MAILING ADDRESS AND TELEPHONE NUMBER OF ANY HEALTH CARE PROFESSIONAL WHO
IS A PHYSICIAN AND WHOSE SERVICES ARE REASONABLY ANTICIPATED AT THE TIME
OF THE PRE-ADMISSION TESTING, REGISTRATION OR ADMISSION AND WILL BE
PROVIDED AT THE HOSPITAL, BUT WILL NOT BE BILLED AS PART OF THE HOSPITAL
CHARGES, AS REPORTED BY THE PATIENT'S PHYSICIAN; AND (B) DISCLOSE WHETH-
ER THE SERVICES OF HEALTH CARE PROFESSIONALS WHO ARE PHYSICIANS AND
TYPICALLY PROVIDE HOSPITAL SERVICES SUCH AS, BUT NOT LIMITED TO, ANESTH-
ESIOLOGY, PATHOLOGY OR RADIOLOGY ARE BILLED AS PART OF THE HOSPITAL
CHARGES.
8. FOR PURPOSES OF THIS SUBDIVISION:
(A) "HEALTH CARE PLAN" MEANS A HEALTH INSURER INCLUDING AN INSURER
LICENSED TO WRITE ACCIDENT AND HEALTH INSURANCE SUBJECT TO ARTICLE THIR-
TY-TWO OF THE INSURANCE LAW; A CORPORATION ORGANIZED PURSUANT TO ARTICLE
FORTY-THREE OF THE INSURANCE LAW; A MUNICIPAL COOPERATIVE HEALTH BENEFIT
PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THE INSURANCE LAW; A
HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR
OF THIS CHAPTER; OR A SELF-FUNDED EMPLOYEE WELFARE BENEFIT PLAN.
(B) "HEALTH CARE PROFESSIONAL" MEANS AN APPROPRIATELY LICENSED, REGIS-
TERED OR CERTIFIED HEALTH CARE PROFESSIONAL PURSUANT TO TITLE EIGHT OF
THE EDUCATION LAW.
S 18. Paragraphs (p-1), (q) and (r) of subdivision 1 of section 4408
of the public health law, paragraph (p-1) as added by chapter 554 of the
laws of 2002, and paragraphs (q) and (r) as added by chapter 705 of the
laws of 1996, are amended and two new paragraphs (s) and (t) are added
to read as follows:
(p-1) notice that an enrollee shall have direct access to primary and
preventive obstetric and gynecologic services INCLUDING ANNUAL EXAMINA-
TIONS, CARE RESULTING FROM SUCH ANNUAL EXAMINATIONS, AND TREATMENT OF
ACUTE GYNECOLOGIC CONDITIONS, from a qualified provider of such services
of her choice from within the plan [for no fewer than two examinations
annually for such services] or [to] FOR any care related to A pregnancy
[and that additionally, the enrollee shall have direct access to primary
and preventive obstetric and gynecologic services required as a result
of such annual examinations or as a result of an acute gynecologic
condition];
(q) notice of all appropriate mailing addresses and telephone numbers
to be utilized by enrollees seeking information or authorization; [and]
(r) a listing by specialty, which may be in a separate document that
is updated annually, of the name, address and telephone number of all
participating providers, including facilities, and, in addition, in the
case of physicians, board certification[.], LANGUAGES SPOKEN AND AFFIL-
IATION WITH PARTICIPATING HOSPITALS. THE LISTING SHALL ALSO BE POSTED ON
THE HEALTH MAINTENANCE ORGANIZATION'S WEBSITE AND THE HEALTH MAINTENANCE
ORGANIZATION SHALL UPDATE THE WEBSITE WITHIN FIFTEEN DAYS OF THE ADDI-
TION OR TERMINATION OF A PROVIDER FROM THE HEALTH MAINTENANCE ORGANIZA-
TION'S NETWORK OR A CHANGE IN A PHYSICIAN'S HOSPITAL AFFILIATION;
(S) WHERE APPLICABLE, A DESCRIPTION OF THE METHOD BY WHICH AN ENROLLEE
MAY SUBMIT A CLAIM FOR HEALTH CARE SERVICES, INCLUDING THROUGH THE
INTERNET, ELECTRONIC MAIL OR BY FACSIMILE; AND

S. 7745 10

(T) WHERE APPLICABLE, WHEN A CONTRACT OFFERS OUT-OF-NETWORK COVERAGE
PURSUANT TO SUBSECTIONS (B) AND (C) OF SECTION THIRTY-TWO HUNDRED FORTY
OF THE INSURANCE LAW:
(I) A CLEAR DESCRIPTION OF THE METHODOLOGY USED BY THE HEALTH MAINTE-
NANCE ORGANIZATION TO DETERMINE REIMBURSEMENT FOR OUT-OF-NETWORK HEALTH
CARE SERVICES;
(II) A DESCRIPTION OF THE AMOUNT THAT THE HEALTH MAINTENANCE ORGANIZA-
TION WILL REIMBURSE UNDER THE METHODOLOGY FOR OUT-OF-NETWORK HEALTH CARE
SERVICES SET FORTH AS A PERCENTAGE OF THE USUAL AND CUSTOMARY COST FOR
OUT-OF-NETWORK HEALTH CARE SERVICES; AND
(III) EXAMPLES OF ANTICIPATED OUT-OF-POCKET COSTS FOR FREQUENTLY
BILLED OUT-OF-NETWORK HEALTH CARE SERVICES.
S 19. Paragraphs (k) and (l) of subdivision 2 of section 4408 of the
public health law, as added by chapter 705 of the laws of 1996, are
amended and three new paragraphs (m), (n) and (o) are added to read as
follows:
(k) provide the written application procedures and minimum qualifica-
tion requirements for health care providers to be considered by the
health maintenance organization; [and]
(1) disclose other information as required by the commissioner,
provided that such requirements are promulgated pursuant to the state
administrative procedure act[.];
(M) DISCLOSE WHETHER A HEALTH CARE PROVIDER SCHEDULED TO PROVIDE A
HEALTH CARE SERVICE IS AN IN-NETWORK PROVIDER;
(N) WHERE APPLICABLE, WITH RESPECT TO OUT-OF-NETWORK COVERAGE,
DISCLOSE THE DOLLAR AMOUNT THAT THE HEALTH MAINTENANCE ORGANIZATION WILL
PAY FOR A SPECIFIC OUT-OF-NETWORK HEALTH CARE SERVICE; AND
(O) PROVIDE INFORMATION IN WRITING AND THROUGH AN INTERNET WEBSITE
THAT REASONABLY PERMITS AN ENROLLEE OR PROSPECTIVE ENROLLEE TO DETERMINE
THE ANTICIPATED OUT-OF-POCKET COST FOR OUT-OF-NETWORK HEALTH CARE
SERVICES IN A GEOGRAPHICAL AREA OR ZIP CODE BASED UPON THE DIFFERENCE
BETWEEN WHAT THE HEALTH MAINTENANCE ORGANIZATION WILL REIMBURSE FOR
OUT-OF-NETWORK HEALTH CARE SERVICES AND THE USUAL AND CUSTOMARY COST FOR
OUT-OF-NETWORK HEALTH CARE SERVICES.
S 20. Section 4408 of the public health law is amended by adding a new
subdivision 7 to read as follows:
7. FOR PURPOSES OF THIS SECTION, "USUAL AND CUSTOMARY COST" SHALL
MEAN THE EIGHTIETH PERCENTILE OF ALL CHARGES FOR THE PARTICULAR HEALTH
CARE SERVICE PERFORMED BY A PROVIDER IN THE SAME OR SIMILAR SPECIALTY
AND PROVIDED IN THE SAME GEOGRAPHICAL AREA AS REPORTED IN A BENCHMARKING
DATABASE MAINTAINED BY A NONPROFIT ORGANIZATION SPECIFIED BY THE SUPER-
INTENDENT OF FINANCIAL SERVICES. THE NONPROFIT ORGANIZATION SHALL NOT BE
AFFILIATED WITH AN INSURER, A CORPORATION SUBJECT TO ARTICLE FORTY-THREE
OF THE INSURANCE LAW, A MUNICIPAL COOPERATIVE HEALTH BENEFIT PLAN CERTI-
FIED PURSUANT TO ARTICLE FORTY-SEVEN OF THE INSURANCE LAW, OR A HEALTH
MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO THIS ARTICLE.
S 21. Subdivision 7-g of section 4900 of the public health law is
renumbered subdivision 7-h and a new subdivision 7-g is added to read as
follows:
7-G. "OUT-OF-NETWORK REFERRAL DENIAL" MEANS A DENIAL OF A REQUEST FOR
AN AUTHORIZATION OR REFERRAL TO AN OUT-OF-NETWORK PROVIDER ON THE BASIS
THAT THE HEALTH CARE PLAN HAS A HEALTH CARE PROVIDER IN THE IN-NETWORK
BENEFITS PORTION OF ITS NETWORK WITH APPROPRIATE TRAINING AND EXPERIENCE
TO MEET THE PARTICULAR HEALTH CARE NEEDS OF AN ENROLLEE, AND WHO IS ABLE
TO PROVIDE THE REQUESTED HEALTH SERVICE. THE NOTICE OF A DENIAL OF AN
OUT-OF-NETWORK REFERRAL PROVIDED TO AN ENROLLEE SHALL INCLUDE INFORMA-

S. 7745 11

TION EXPLAINING WHAT INFORMATION THE ENROLLEE MUST SUBMIT IN ORDER TO
APPEAL THE DENIAL OF AN OUT-OF-NETWORK REFERRAL PURSUANT TO SUBDIVISION
ONE-B OF SECTION FOUR THOUSAND NINE HUNDRED FOUR OF THIS ARTICLE. A
DENIAL OF AN OUT-OF-NETWORK REFERRAL UNDER THIS SUBDIVISION DOES NOT
CONSTITUTE AN ADVERSE DETERMINATION AS DEFINED IN THIS ARTICLE. A DENIAL
OF AN OUT-OF-NETWORK REFERRAL SHALL NOT BE CONSTRUED TO INCLUDE AN OUT-
OF-NETWORK DENIAL AS DEFINED IN SUBDIVISION SEVEN-F OF THIS SECTION.
S 22. Subdivision 2 of section 4903 of the public health law, as added
by chapter 705 of the laws of 1996, is amended to read as follows:
2. A utilization review agent shall make a utilization review determi-
nation involving health care services which require pre-authorization
and provide notice of a determination to the enrollee or enrollee's
designee and the enrollee's health care provider by telephone and in
writing within three business days of receipt of the necessary informa-
tion. THE NOTIFICATION SHALL IDENTIFY WHETHER THE SERVICES ARE CONSID-
ERED IN-NETWORK OR OUT-OF-NETWORK.
S 23. Section 4904 of the public health law is amended by adding a new
subdivision 1-b to read as follows:
1-B. AN ENROLLEE OR THE ENROLLEE'S DESIGNEE MAY APPEAL A DENIAL OF AN
OUT-OF-NETWORK REFERRAL BY A HEALTH CARE PLAN BY SUBMITTING A WRITTEN
STATEMENT FROM THE ENROLLEE'S ATTENDING PHYSICIAN, WHO MUST BE A
LICENSED, BOARD CERTIFIED OR BOARD ELIGIBLE PHYSICIAN QUALIFIED TO PRAC-
TICE IN THE SPECIALTY AREA OF PRACTICE APPROPRIATE TO TREAT THE ENROLLEE
FOR THE HEALTH SERVICE SOUGHT THAT: (A) THE IN-NETWORK HEALTH CARE
PROVIDER OR PROVIDERS RECOMMENDED BY THE HEALTH CARE PLAN DO NOT HAVE
THE APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH
CARE NEEDS OF THE ENROLLEE FOR THE HEALTH SERVICE; AND (B) RECOMMENDS AN
OUT-OF-NETWORK PROVIDER WITH THE APPROPRIATE TRAINING AND EXPERIENCE TO
MEET THE PARTICULAR HEALTH CARE NEEDS OF THE ENROLLEE, AND WHO IS ABLE
TO PROVIDE THE REQUESTED HEALTH SERVICE.
S 24. Subdivision 2 of section 4910 of the public health law is
amended by adding a new paragraph (d) to read as follows:
(D)(I) THE ENROLLEE HAS HAD AN OUT-OF-NETWORK REFERRAL DENIED ON THE
GROUNDS THAT THE HEALTH CARE PLAN HAS A HEALTH CARE PROVIDER IN THE
IN-NETWORK BENEFITS PORTION OF ITS NETWORK WITH APPROPRIATE TRAINING AND
EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE NEEDS OF AN ENROLLEE, AND
WHO IS ABLE TO PROVIDE THE REQUESTED HEALTH SERVICE.
(II) THE ENROLLEE'S ATTENDING PHYSICIAN, WHO SHALL BE A LICENSED,
BOARD CERTIFIED OR BOARD ELIGIBLE PHYSICIAN QUALIFIED TO PRACTICE IN THE
SPECIALTY AREA OF PRACTICE APPROPRIATE TO TREAT THE ENROLLEE FOR THE
HEALTH SERVICE SOUGHT, CERTIFIES THAT THE IN-NETWORK HEALTH CARE PROVID-
ER OR PROVIDERS RECOMMENDED BY THE HEALTH CARE PLAN DO NOT HAVE THE
APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE
NEEDS OF AN ENROLLEE, AND RECOMMENDS AN OUT-OF-NETWORK PROVIDER WITH THE
APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTICULAR HEALTH CARE
NEEDS OF AN ENROLLEE, AND WHO IS ABLE TO PROVIDE THE REQUESTED HEALTH
SERVICE.
S 25. Paragraph (d) of subdivision 2 of section 4914 of the public
health law is amended by adding a new subparagraph (D) to read as
follows:
(D) FOR EXTERNAL APPEALS REQUESTED PURSUANT TO PARAGRAPH (D) OF SUBDI-
VISION TWO OF SECTION FOUR THOUSAND NINE HUNDRED TEN OF THIS TITLE
RELATING TO AN OUT-OF-NETWORK REFERRAL, THE EXTERNAL APPEAL AGENT SHALL
REVIEW THE UTILIZATION REVIEW AGENT'S FINAL ADVERSE DETERMINATION AND,
IN ACCORDANCE WITH THE PROVISIONS OF THIS TITLE, SHALL MAKE A DETERMI-

S. 7745 12

NATION AS TO WHETHER THE OUT-OF-NETWORK REFERRAL SHALL BE COVERED BY THE
HEALTH PLAN; PROVIDED THAT SUCH DETERMINATION SHALL:
(I) BE CONDUCTED ONLY BY ONE OR A GREATER ODD NUMBER OF CLINICAL PEER
REVIEWERS;
(II) BE ACCOMPANIED BY A WRITTEN STATEMENT:
(1) THAT THE OUT-OF-NETWORK REFERRAL SHALL BE COVERED BY THE HEALTH
CARE PLAN EITHER WHEN THE REVIEWER OR A MAJORITY OF THE PANEL OF REVIEW-
ERS DETERMINES, UPON REVIEW OF THE TRAINING AND EXPERIENCE OF THE
IN-NETWORK HEALTH CARE PROVIDER OR PROVIDERS PROPOSED BY THE PLAN, THE
TRAINING AND EXPERIENCE OF THE REQUESTED OUT-OF-NETWORK PROVIDER, THE
CLINICAL STANDARDS OF THE PLAN, THE INFORMATION PROVIDED CONCERNING THE
ENROLLEE, THE ATTENDING PHYSICIAN'S RECOMMENDATION, THE ENROLLEE'S
MEDICAL RECORD, AND ANY OTHER PERTINENT INFORMATION, THAT THE HEALTH
PLAN DOES NOT HAVE A PROVIDER WITH THE APPROPRIATE TRAINING AND EXPERI-
ENCE TO MEET THE PARTICULAR HEALTH CARE NEEDS OF AN ENROLLEE WHO IS ABLE
TO PROVIDE THE REQUESTED HEALTH SERVICE, AND THAT THE OUT-OF-NETWORK
PROVIDER HAS THE APPROPRIATE TRAINING AND EXPERIENCE TO MEET THE PARTIC-
ULAR HEALTH CARE NEEDS OF AN ENROLLEE, IS ABLE TO PROVIDE THE REQUESTED
HEALTH SERVICE, AND IS LIKELY TO PRODUCE A MORE CLINICALLY BENEFICIAL
OUTCOME; OR
(2) UPHOLDING THE HEALTH PLAN'S DENIAL OF COVERAGE;
(III) BE SUBJECT TO THE TERMS AND CONDITIONS GENERALLY APPLICABLE TO
BENEFITS UNDER THE EVIDENCE OF COVERAGE UNDER THE HEALTH CARE PLAN;
(IV) BE BINDING ON THE PLAN AND THE ENROLLEE; AND
(V) BE ADMISSIBLE IN ANY COURT PROCEEDING.
S 26. The financial services law is amended by adding a new article 7
to read as follows:
ARTICLE 7
EMERGENCY MEDICAL SERVICES
SECTION 701. DEFINITIONS.
702. PROHIBITION OF EXCESSIVE CHARGES FOR EMERGENCY SERVICES.
703. DISPUTE RESOLUTION.
704. CRITERIA FOR DETERMINING EXCESSIVE CHARGES.
S 701. DEFINITIONS. FOR THE PURPOSES OF THIS ARTICLE:
(A) "EMERGENCY CONDITION" MEANS A MEDICAL OR BEHAVIORAL CONDITION THAT
MANIFESTS ITSELF BY ACUTE SYMPTOMS OF SUFFICIENT SEVERITY, INCLUDING
SEVERE PAIN, SUCH THAT A PRUDENT LAYPERSON, POSSESSING AN AVERAGE KNOW-
LEDGE OF MEDICINE AND HEALTH, COULD REASONABLY EXPECT THE ABSENCE OF
IMMEDIATE MEDICAL ATTENTION TO RESULT IN (1) PLACING THE HEALTH OF THE
PERSON AFFLICTED WITH SUCH CONDITION IN SERIOUS JEOPARDY, OR IN THE CASE
OF A BEHAVIORAL CONDITION PLACING THE HEALTH OF SUCH PERSON OR OTHERS IN
SERIOUS JEOPARDY; (2) SERIOUS IMPAIRMENT TO SUCH PERSON'S BODILY FUNC-
TIONS; (3) SERIOUS DYSFUNCTION OF ANY BODILY ORGAN OR PART OF SUCH
PERSON; (4) SERIOUS DISFIGUREMENT OF SUCH PERSON; OR (5) A CONDITION
DESCRIBED IN CLAUSE (I), (II) OR (III) OF SECTION 1867(E)(1)(A) OF THE
SOCIAL SECURITY ACT.
(B) "EMERGENCY SERVICES" MEANS, WITH RESPECT TO AN EMERGENCY CONDI-
TION: (1) A MEDICAL SCREENING EXAMINATION AS REQUIRED UNDER SECTION 1867
OF THE SOCIAL SECURITY ACT, 42 U.S.C. S 1395DD, WHICH IS WITHIN THE
CAPABILITY OF THE EMERGENCY DEPARTMENT OF A HOSPITAL, INCLUDING ANCIL-
LARY SERVICES ROUTINELY AVAILABLE TO THE EMERGENCY DEPARTMENT TO EVALU-
ATE SUCH EMERGENCY MEDICAL CONDITION; AND (2) WITHIN THE CAPABILITIES OF
THE STAFF AND FACILITIES AVAILABLE AT THE HOSPITAL, SUCH FURTHER MEDICAL
EXAMINATION AND TREATMENT AS ARE REQUIRED UNDER SECTION 1867 OF THE
SOCIAL SECURITY ACT, 42 U.S.C. S 1395DD, TO STABILIZE THE PATIENT.

S. 7745 13

(C) "EXCESSIVE FEE" MEANS A FEE THAT IS IN EXCESS OF AN AMOUNT DETER-
MINED IN ACCORDANCE WITH SECTION SEVEN HUNDRED FOUR OF THIS ARTICLE.
(D) "HEALTH CARE PLAN" MEANS A HEALTH INSURER INCLUDING AN INSURER
LICENSED TO WRITE ACCIDENT AND HEALTH INSURANCE SUBJECT TO ARTICLE THIR-
TY-TWO OF THE INSURANCE LAW; A CORPORATION ORGANIZED PURSUANT TO ARTICLE
FORTY-THREE OF THE INSURANCE LAW; A MUNICIPAL COOPERATIVE HEALTH BENEFIT
PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THE INSURANCE LAW; A
HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE FORTY-FOUR
OF THE PUBLIC HEALTH LAW; OR A SELF-FUNDED EMPLOYEE WELFARE BENEFIT
PLAN.
(E) "INSURED" MEANS A PATIENT COVERED UNDER A POLICY OR CONTRACT WITH
A HEALTH CARE PLAN.
(F) "PATIENT" MEANS A PERSON WHO RECEIVES EMERGENCY SERVICES IN THIS
STATE.
(G) "USUAL AND CUSTOMARY COST" MEANS THE EIGHTIETH PERCENTILE OF ALL
CHARGES FOR THE PARTICULAR HEALTH CARE SERVICE PERFORMED BY A PROVIDER
IN THE SAME OR SIMILAR SPECIALTY AND PROVIDED IN THE SAME GEOGRAPHICAL
AREA AS REPORTED IN A BENCHMARKING DATABASE MAINTAINED BY A NONPROFIT
ORGANIZATION SPECIFIED BY THE SUPERINTENDENT. THE NONPROFIT ORGANIZATION
SHALL NOT BE AFFILIATED WITH AN INSURER, A CORPORATION SUBJECT TO ARTI-
CLE FORTY-THREE OF THE INSURANCE LAW, A MUNICIPAL COOPERATIVE HEALTH
BENEFIT PLAN CERTIFIED PURSUANT TO ARTICLE FORTY-SEVEN OF THE INSURANCE
LAW, OR A HEALTH MAINTENANCE ORGANIZATION CERTIFIED PURSUANT TO ARTICLE
FORTY-FOUR OF THE PUBLIC HEALTH LAW.
S 702. PROHIBITION OF EXCESSIVE CHARGES FOR EMERGENCY SERVICES. (A) A
PHYSICIAN WHO PROVIDES HEALTH CARE SERVICES IN THIS STATE SHALL NOT
CHARGE AN EXCESSIVE FEE BASED ON THE CRITERIA FOR PROVIDING EMERGENCY
SERVICES IN SECTION SEVEN HUNDRED THREE OF THIS ARTICLE.
(B) THIS ARTICLE DOES NOT APPLY TO EMERGENCY SERVICES WHERE PROVIDER
FEES ARE SUBJECT TO SCHEDULES OR OTHER MONETARY LIMITATIONS UNDER ANY
OTHER LAW, INCLUDING THE WORKERS' COMPENSATION LAW AND ARTICLE FIFTY-ONE
OF THE INSURANCE LAW, AND SHALL NOT PREEMPT ANY SUCH LAW.
S 703. DISPUTE RESOLUTION. (A) A HEALTH CARE PLAN OR A PATIENT ALLEG-
ING THAT A PHYSICIAN HAS CHARGED AN EXCESSIVE FEE FOR PROVIDING EMERGEN-
CY SERVICES MAY SUBMIT THE DISPUTE FOR REVIEW TO AN INDEPENDENT DISPUTE
RESOLUTION ENTITY, IN ACCORDANCE WITH REGULATIONS PROMULGATED BY THE
SUPERINTENDENT, IF THE PHYSICIAN'S CHARGE EXCEEDS THE USUAL AND CUSTOM-
ARY COST OF THE HEALTH CARE SERVICES.
(B) A PATIENT SHALL NOT BE REQUIRED TO PAY THE PHYSICIAN'S FEE IN
ORDER TO BE ELIGIBLE TO SUBMIT THE DISPUTE FOR REVIEW TO THE INDEPENDENT
DISPUTE RESOLUTION ENTITY.
S 704. CRITERIA FOR DETERMINING EXCESSIVE CHARGES. (A)(1) THE INDE-
PENDENT DISPUTE RESOLUTION ENTITY SHALL DECIDE WHETHER THE FEE CHARGED
BY THE PHYSICIAN FOR THE SERVICES RENDERED IS EXCESSIVE. IN MAKING SUCH
A DETERMINATION THE INDEPENDENT DISPUTE RESOLUTION ENTITY SHALL CONSIDER
ALL RELEVANT FACTORS INCLUDING:
(I) WHETHER THERE IS A GROSS DISPARITY BETWEEN THE FEE CHARGED BY THE
PHYSICIAN FOR SERVICES RENDERED AS COMPARED TO: (A) FEES PAID BY THE
HEALTH CARE PLAN TO REIMBURSE SIMILARLY QUALIFIED PHYSICIANS FOR THE
SAME SERVICES IN THE SAME REGION WHO DO NOT PARTICIPATE WITH THE HEALTH
CARE PLAN; AND (B) FEES PAID TO THE INVOLVED PHYSICIAN FOR THE SAME
SERVICES RENDERED BY THE PHYSICIAN TO PATIENTS IN HEALTH CARE PLANS IN
WHICH THE PHYSICIAN DOES NOT PARTICIPATE;
(II) THE LEVEL OF TRAINING, EDUCATION AND EXPERIENCE OF THE PHYSICIAN;

S. 7745 14

(III) THE PHYSICIAN'S USUAL CHARGE FOR COMPARABLE SERVICES WITH REGARD
TO PATIENTS IN HEALTH CARE PLANS IN WHICH THE PHYSICIAN DOES NOT PARTIC-
IPATE;
(IV) THE CIRCUMSTANCES AND COMPLEXITY OF THE PARTICULAR CASE, INCLUD-
ING TIME AND PLACE OF THE SERVICE;
(V) INDIVIDUAL PATIENT CHARACTERISTICS; AND
(VI) THE USUAL AND CUSTOMARY COST OF THE SERVICE.
(2) IF THE INDEPENDENT DISPUTE RESOLUTION ENTITY DETERMINES THAT THE
FEE CHARGED IS EXCESSIVE, THEN THE INDEPENDENT DISPUTE RESOLUTION ENTITY
SHALL DETERMINE A REASONABLE FEE FOR THE SERVICES BASED UPON THE SAME
CONDITIONS AND FACTORS SET FORTH IN THIS SUBDIVISION, WHICH FEE SHALL
NOT BE LESS THAN THE USUAL AND CUSTOMARY COST FOR SUCH SERVICES. THE
PHYSICIAN SHALL RETURN TO THE HEALTH CARE PLAN ANY PORTION OF THE FEE
PAID BY THE HEALTH CARE PLAN IN EXCESS OF THE AMOUNT DETERMINED TO BE
REASONABLE BY THE INDEPENDENT DISPUTE RESOLUTION ENTITY.
(B) THE DETERMINATION OF AN INDEPENDENT DISPUTE RESOLUTION ENTITY
SHALL BE BINDING ON THE HEALTH CARE PLAN, PHYSICIAN AND PATIENT, AND
SHALL BE ADMISSIBLE IN ANY COURT PROCEEDING BETWEEN THE HEALTH CARE
PLAN, PHYSICIAN OR PATIENT, OR IN ANY ADMINISTRATIVE PROCEEDING BETWEEN
THIS STATE AND THE PHYSICIAN.
(C) THE SUPERINTENDENT SHALL PROMULGATE REGULATIONS TO ESTABLISH STAN-
DARDS FOR THE DISPUTE RESOLUTION PROCESS INCLUDING STANDARDS FOR ESTAB-
LISHING WHICH PARTY SHALL BE RESPONSIBLE FOR PAYMENT OF THE DISPUTE
RESOLUTION PROCESS.
S 27. This act shall take effect January 1, 2013, provided, however,
that:
1. for policies renewed on and after such date this act shall take
effect on the renewal date;
2. sections twelve, sixteen, seventeen, twenty-two and twenty-six of
this act shall apply to health care services provided on and after such
date and section twenty-six of this act shall expire and be deemed
repealed January 1, 2015; and
3. sections eleven, thirteen, fourteen, fifteen, twenty-one, twenty-
three, twenty-four and twenty-five of this act shall apply to denials
issued on and after such date.

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